Karnataka High Court
Sri Jayaraj vs State Of Karnataka on 2 January, 2023
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.606 OF 2022
BETWEEN
SRI JAYARAJ
S/O HEMA NAIK
AGED ABOUT 43 YEARS,
POLICE INSPECTOR KR PURAM P S
PRESENTLY POLICE INSPECTOR CID
BANGALORE
R/O B-3 CASA GRAND LUXES
HALEHALLI MAIN ROAD K R PURAM
BANGALORE-36 ... PETITIONER
(BY SRI PARAMESHWAR N HEGDE , ADVOCATE)
AND
1 . STATE OF KARNATAKA
ANTI-CORRUPTION BUREAU,
BANGALORE CITY DIVISION
REP BY ITS SPP
HIGH COURT OF KARNATAKA
BANGALORE-01
2 . MR SANJU RAJAN NAYAR
S/O RAJAN D NAYAR
AGED ABOUT 37 YEARS,
SOFTWARE ENGINEER
NO.15, 12TH CROSS
RAJALAKSHMI NILAYA
2
BASAVANAPURA MAIN ROAD
K R PURAM
BANGALORE-36
... RESPONDENTS
(BY SRI AMAR CORREA , ADVOCATE FOR R2
SRI.B B PATIL, SPECIAL COUNSEL FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C PRAYING TO QUASH THE FIR IN
CR.NO.63/2021 REGISTERED ON 08.12.2021 BY THE
RESPONDENT POLICE FOR THE OFFENCE P/U/S 7(a) OF
P.C ACT AND PENDING ON THE FILE OF THE 23RD
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.12.2022, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed by accused No.1 under Section
482 of Cr.P.C for quashing the FIR in Crime No.63/2021
registered by the then Anti-corrupting Bureau/present
Lokayuktha for the for the offence punishable under
Section 7 (a) of the Prevention of Corruption Act (herein
referred as PC Act) pending on the file of 23rd Additional
City Civil and Sessions Judge, Bangalore.
2. Heard the arguments of learned counsel for
petitioner and Sri.B.B. Patil, special counsel appearing for
Lokayuktha as well as counsel for respondent No.2.
3. The case of the petitioner is that on 10.02.2021
the respondent No.2 said to have lodged complaint against
petitioner and against two officials stating that they
harassed him in settling his matrimonial case, which was
pending between the complainant and his wife and that he
had approached the Karnataka Human Rights Commission.
Based upon the enquiry conducted by the ACB, one
K.S.Nagaraj and as per the order of DG and IGP, the case
was registered against the petitioner alleging that the
accused No.2 said to have demanded bribe of Rs.20,000/-
from the petitioner who is said to be A police inspector.
The conversation between the complainant and accused
No.2 has been recorded to show the demand was made by
accused No.2. Therefore, the complaint came to be filed
and investigation was taken up by the respondent police
ACB/Lokayukta which is under challenge.
4. The learned counsel for the petitioner has
contended that there is no direct conversation between
petitioner and complainant in respect of demanding any
money by this petitioner/accused. The complainant had
approached the police who is said to have arrested the
brother of the complainant and he is said to have illegally
detained them. Accused No.2/Shivakumar ASI contacted
the complainant through his mobile phone and demanded
Rs.20,000/- and at that time he is said to have told that he
has paid Rs.25,000/- to the accused No.1/the present
petitioner and he requires some more money. The call
records were produced before police and registered case
against accused Nos.1 and 2, which is under challenge.
5. The learned counsel for the petitioner further
contended that absolutely there is no material placed on
record to show the involvement of this petitioner with
accused No.2 in demanding any bribe either through
accused No.2 or directly from complainant. The name of
this petitioner was implicated only on the basis of the call
records in respect of the conversation between accused
No.2 and complainant. The petitioner is nowhere
connected with the conversation, if at all he has told that
he has paid any money to accused No.2, but the same was
not recorded from the petitioner. It is admittedly false
implication of this petitioner by the complainant as the
petitioner was investigating the matter against the
complainant on the complaint filed by the wife of the
respondent No.2. Therefore, conducting investigation
against this petitioner is abuse of process of law, hence
liable to be quashed. The learned counsel also contended
that respondent No.2 already had filed a complaint before
Human Rights Commission and an enquiry was held.
Thereafter, the enquiry was referred to the higher officer
of the Police Department where ACP conducted enquiry
and he has stated that there is no involvement of this
petitioner in the crime. As police has already held that
there are no material against this petitioner for having
demanded any bribe from the complainant and no material
placed against petitioner for filing charge sheet, therefore
prayed for quashing FIR. Learned counsel further
contended that the police sought permission or sanction to
prosecute case against this petitioner, where the higher
Police Department officer stated there is no material
against him. However, inspite of the same without
application of mind, the sanction has been granted to
investigate case against the petitioner. Therefore prayed
for quashing the FIR. In support of his contention learned
counsel relied upon the following judgments;
1) The judgment of Hon'ble Supreme Court
reported in (2020) 9 SCC 636 in case of Ashoo
Surendranath Tewari Vs Deputy Superintendent of
Police, EOW, CBI and Anr.
2) Judgment of the single judge of the co-ordinate
bench in A.L.Jayaramu Vs State of Karnataka and Anr.
in WP.No.19700/2018.
6. Per contra Sri.B.B.Patil, learned special counsel
for respondent/Lokayukta objected the petition and
contended that the detailed statement of the respondent
No.2 has been recorded by the DYSP and there was
demand of money by the petitioner on 09.11.2018, later
this petitioner again demanded money and the accused
No.1 has already stated that the amount has been paid to
this petitioner and therefore as a prima facie material to
show there was demand of the bribe by this petitioner
through accused No.2. Therefore, the petitioner is required
for investigation and prayed for dismissing the petition.
7. The counsel for respondent No.2 also objected
and contended that in the departmental enquiry even
though he was exonerated the criminal proceedings cannot
be quashed and it was only enquiry and the matter
requires to be investigated. The judgment of Hon'ble
Supreme Court relied upon by the petitioner mentioned
above in Ashoo Surendranath Tewari's did not follow
the judgment of the Hon'ble Supreme Court which was
held in the case of State (NCT of Delhi) Vs Ajay Kumar
Tyagi reported in (2012) 9 SCC 685 and as per law of
precedence, the subsequent judgment or later judgments
shall have to be allowed by the Courts in India and it is
binding, wherein the Hon'ble Supreme Court has stated
investigation shall go on with the accused persons and
criminal proceedings cannot be quashed, even if the
accused persons is exonerated from the departmental
enquiry. He also relied upon judgment of Hon'ble
Supreme Court reported in (1955) 1 SCR 1150: AIR
1955 SC 196 : 1955 Cri LJ 526 in case of H.N.
Rishbud and Inder Singh Vs State of Delhi and
connected matters. Another case in (1969) 2 SCR 438 :
AIR 1970 SC 962 : 1970 Cri LJ 885 in case of Assistant
Collector of Customs, Bombay and Anr Vs. L.R.
Melwani and Anr and the connected matters. The learned
counsel also contended that the recent judgment of the
Hon'ble Supreme Court has held in Neeraj Dutta Vs
State (Govt. of NCT Delhi) in Crl.A.No.1669/2009
where it was held that the Court can convict the accused in
Prevention of Corruption Act, on the circumstantial
evidence and also contended as per the law of precedence,
the latest judgments are prevailing over courts, hence
prayed for dismissing the petition.
8. Per contra, learned counsel for petitioner by way
of reply has contended that the previous judgment of the
Hon'ble Supreme Court in Radheshyam Kejriwal V State
of West Bengal reported in (2011) 3 SCC 581 which
was delivered judgment which is equal number of 3
Benches Judgment wherein it is categorically held, when in
the Departmental Enquiry the accused was exonerated,
the investigation cannot be continued and criminal
proceedings cannot be tried. Whereas he further
contended, on subsequent judgments the same number of
judgment taken different view. Therefore matter was
referred to larger bench in Ajay Kumar Tyagi's case
where the Hon'ble Supreme Court has held by following
the judgment of Radheshyam Kejriwal's case reported
in (2011) 3 SCC 581 and quashed criminal proceedings.
Further contended the latest judgment of Hon'ble Supreme
Court reported in 2020 also relied judgment of Ajay
Kumar Tyagi's case Radheshyam Kejriwal's case and
taken similar view and quashed the criminal proceedings
and further contended that the judgment relied upon the
Radheshyam Kejriwal's case and quashed criminal
proceedings in Ashoo Surendranath Tewari's case.
Either way first judgment delivered by the Hon'ble
Supreme Court in 2011 and the latest judgment in 2020 in
Ashoo Surendranath Tewari's has categorically held,
during the enquiry, when the accused is exonerated from
the charges, the investigation cannot be continued and
therefore proceedings has been quashed. Therefore, he
has contended that the judgment of the petitioner, has to
be followed by the courts. Hence, prayed for allowing the
petition.
9. Having heard the arguments, perusal of the
records. On perusal of the same, admittedly the
complainant said to be an accused in a complaint given by
his wife against him in the police station, where accused
No.1 was posted as police inspector and Investigation
Officer. The police said to have harassed the complainant
and also demanded cash or bribe from the complainant
and they took the brother of the complainant from the
house and detained in police station. Therefore, he went
along with the lawyer and got released his brother by
paying Rs.20,000/- as bribe. Admittedly, he said to have
paid Rs.20,000/- to accused No.2 who is Assistant Sub-
Inspector of Police who has informed that he wants bribe
in order to pay to accused No.1. The audio recording of
conversation between accused No.2 and complainant has
been produced, where accused No.2 demands money from
the complainant and he tells that the amount already
received has been given to accused No.1, but admittedly
there is no material or call records or video records or
telephonic conversation between this petitioner and
complainant. Even otherwise, telephone of the accused
No.2 has not been used by this petitioner for having
discussed with the complainant either to demand or accept
the money. Admittedly, the complainant said to have
already paid Rs.20,000/- to accused 2. Accused No.2 is
the person who demanded money in the name of accused
No.1, but there is no direct evidence, where this petitioner
has demanded any money or bribe from the complainant.
Absolutely there is no material to proceed against this
accused No.1. That apart, it is worth to mention that there
was complaint registered against respondent No.2 in
Crime No.555/2018 for both offences under Sections
POCSO as well as Section 354 of IPC on the complaint filed
by the wife of respondent No.2. During the investigation,
the petitioner/accused No.2 said to have summoned the
complainant to the police station who is said to have been
harassed by them and was demanded money. But later,
only in order to overcome the complaint filed against
respondent No.2, by his wife this complaint was filed for
taking revenge against the police as they had summoned
the respondent No.2 to the police for the purpose of
investigation in Crime No.555/2018. It is worth to
mention that the complainant already approached the
Human Rights Commission and the Human Rights
Commission said to have made an enquiry and referred
the matter to the Police Department for initiating
disciplinary enquiry. Subsequently, enquiry has been held
by the Police Department through ACP and he has given
report stating that there is no substance in the complaint
and therefore accused No.1 has been exonerated.
Admittedly, once again, the matter has been referred to
the Government to the Home Department for granting
sanction. The secretary accorded the sanction under
Section 17 of the Prevention of Corruption Act, where he
has not applied the mind while granting sanction, even
though the Police Department already made enquiry and
exonerated accused No.1 from the allegation of demanding
bribe by this petitioner through accused No.2. In this
regard, judgment relied upon by the petitioner counsel
reported in 2020 in the case of Ashoo Surendranath
Tewari's case delivered by the Supreme Court on
08.09.2020 wherein Hon'ble Supreme Court by relying
upon the judgment in the case of Radheshyam Kejriwal
V State of West stated supra where it is held at para 11,
12, 13 and 15 of the judgment.
11. In Radheshyam Kejriwal v. State of W.B.
[Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC
581 : (2011) 2 SCC (Cri) 721] , this Court held as
follows: (SCC pp. 594-96, paras 26, 29 & 31)
"26. We may observe that the standard of proof in a
criminal case is much higher than that of the
adjudication proceedings. The Enforcement
Directorate has not been able to prove its case in the
adjudication proceedings and the appellant has been
exonerated on the same allegation. The appellant is
facing trial in the criminal case. Therefore, in our
opinion, the determination of facts in the adjudication
proceedings cannot be said to be irrelevant in the
criminal case. In B.N. Kashyap [B.N. Kashyap v.
Crown, 1944 SCC OnLine Lah 46 : AIR 1945 Lah 23]
the Full Bench had not considered the effect of a
finding of fact in a civil case over the criminal cases
and that will be evident from the following passage of
the said judgment: (SCC OnLine Lah: AIR p. 27)
'... I must, however, say that in answering the
question, I have only referred to civil cases where the
actions are in personam and not those where the
proceedings or actions are in rem. Whether a finding
of fact arrived at in such proceedings or actions would
be relevant in criminal cases, it is unnecessary for me
to decide in this case. When that question arises for
determination, the provisions of Section 41 of the
Evidence Act, will have to be carefully examined.'
***
29. We do not have the slightest hesitation in
accepting the broad submission of Mr Malhotra that
the finding in an adjudication proceeding is not
binding in the proceeding for criminal prosecution. A
person held liable to pay penalty in adjudication
proceedings cannot necessarily be held guilty in a
criminal trial. Adjudication proceedings are decided
on the basis of preponderance of evidence of a little
higher degree whereas in a criminal case the entire
burden to prove beyond all reasonable doubt lies on
the prosecution.
***
31. It is trite that the standard of proof required in
criminal proceedings is higher than that required
before the adjudicating authority and in case the
accused is exonerated before the adjudicating
authority whether his prosecution on the same set of
facts can be allowed or not is the precise question
which falls for determination in this case."
12. After referring to various judgments, this Court
then culled out the ratio of those decisions in para 38
as follows: (Radheshyam Kejriwal case [Radheshyam
Kejriwal v. State of W.B., (2011) 3 SCC 581 : (2011)
2 SCC (Cri) 721] , SCC p. 598)
"38. The ratio which can be culled out from these
decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution
can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution
in the adjudication proceedings is not binding on the
proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement
Directorate is not prosecution by a competent court
of law to attract the provisions of Article 20(2) of the
Constitution or Section 300 of the Code of Criminal
Procedure;
(vi) The finding in the adjudication proceedings in
favour of the person facing trial for identical violation
will depend upon the nature of finding. If the
exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution may
continue; and
(vii) In case of exoneration, however, on merits
where the allegation is found to be not sustainable at
all and the person held innocent, criminal prosecution
on the same set of facts and circumstances cannot be
allowed to continue, the underlying principle being
the higher standard of proof in criminal cases."
13. It finally concluded: (Radheshyam Kejriwal case
[Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC
581 : (2011) 2 SCC (Cri) 721] , SCC p. 598, para 39)
"39. In our opinion, therefore, the yardstick would be
to judge as to whether the allegation in the
adjudication proceedings as well as the proceeding
for prosecution is identical and the exoneration of the
person concerned in the adjudication proceedings is
on merits. In case it is found on merit that there is no
contravention of the provisions of the Act in the
adjudication proceedings, the trial of the person
concerned shall be an abuse of the process of the
court."
15. Applying the aforesaid judgments to the facts of
this case, it is clear that in view of the detailed CVC
order dated 22-12-2011, the chances of conviction in
a criminal trial involving the same facts appear to be
bleak. We, therefore, set aside the judgment [Ashoo
Surendranath Tewari v. CBI, 2014 SCC OnLine Bom
5042] of the High Court and that of the Special Judge
and discharge the appellant from the offences under
the Penal Code.
10. The learned counsel for the respondent has
contended the Hon'ble Supreme Court in case of Ajay
Kumar Tyagi's case which was delivered subsequent to
the judgment of Radheshyam Kejriwal's case reported
in 2012 decided on 31.08.2021 indicates that latest
judgment prevails over all the courts and is binding in
nature. Therefore, in a similar case the Hon'ble Supreme
Court refused to quash a criminal proceedings, even in
spite of exonerating the charges. Admittedly, the Hon'ble
Supreme Court in the case of 2012 Ajay Kumar Tyagi's
case not considered the judgment of Hon'ble Supreme
Court which was relied by the Hon'ble Supreme Court in
case of Radheshyam Kejriwal's. Learned counsel for the
petitioner relied upon Constitution Full Bench of this court,
in case of Govindania G. Kalaghatigi Vs West Patent
Press Co. Ltd. and another where the Full Bench of this
Court consisting of 5 judges held that if two decisions of
Hon'ble Supreme Court, on a question of law, cannot be
reconciled and one of them is by larger Bench, while the
other is by smaller bench, the decision of larger Bench,
whether it is earlier or later in point of time should be
followed by the High Court and other courts. However, if
both such Benches of Hon'ble Supreme Court consisting
equal number of judges, the latter of the two decisions
should be followed by High Court and other courts which is
as under:
(2) In view of the majority opinion, the answer to the
question referred to this Full Bench, is as follows:--
"If two decisions of the Supreme Court on a
question of law cannot be reconciled and one of
them is by a larger Bench while the other is by a
smaller Bench, the decision of the larger Bench,
whether it is earlier or later in point of time, should
be followed by High Courts and others Courts.
However, if both such Benches of the Supreme
Court consist of equal number of Judges, the later
of the two decisions should be followed by High
Courts and other Courts."
As per the Full Bench judgment of this court, if the
judgment of the same number of judges in the case of
Radheshyam Kejriwal's has been delivered in the year
2011, the judgment relied by respondent in Ajay Kumar
tyagi's case delivered in year 2012 shall have to be
followed. However, learned counsel for the petitioner also
relied upon judgment of Hon'ble Supreme Court which is
latest judgment reported in 2020 Ashoo Surendranath
Tewari's case delivered on 08.09.2020 where the Hon'ble
Supreme Court by relying upon the of Radheshyam
Kejriwal's quashed the charges. If judgment of Hon'ble
Supreme Court is relied, then the latest judgment relied by
petitioner in Ashoo Surendranath Tewari's case has to
be followed. Even otherwise, if the earlier case by the
same number of judges has held in Radheshyam
Kejriwal's case and the latest judgment of Hon'ble
Supreme Court in Ashoo Surendranath Tewari's held in
2020 where Hon'ble Supreme Court has held that after the
department enquiry where the accused is exonerated, the
question of once again investigating the matter and
conducting proceedings against the accused is abuse of
process of law. In the case Ashoo Surendranath
Tewari's, in para 12 of the judgment, it is held as under:
12. After referring to various judgments, this Court
then culled out the ratio of those decisions in para
38 as follows: (Radheshyam Kejriwal case
[Radheshyam Kejriwal v. State of W.B., (2011) 3
SCC 581 : (2011) 2 SCC (Cri) 721] , SCC p. 598)
"38. The ratio which can be culled out from these
decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal
prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each
other;
(iv) The finding against the person facing
prosecution in the adjudication proceedings is not
binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement
Directorate is not prosecution by a competent court
of law to attract the provisions of Article 20(2) of
the Constitution or Section 300 of the Code of
Criminal Procedure;
(vi) The finding in the adjudication proceedings in
favour of the person facing trial for identical
violation will depend upon the nature of finding. If
the exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution may
continue; and
(vii) In case of exoneration, however, on merits
where the allegation is found to be not sustainable
at all and the person held innocent, criminal
prosecution on the same set of facts and
circumstances cannot be allowed to continue, the
underlying principle being the higher standard of
proof in criminal cases."
11. In view of three judgments produced by the
counsel for petitioner and learned counsel for respondent,
the judgment of the petitioner's was earlier judgment held
in 2011 and latest judgment in 2020 where the judgment
relied by respondent is 2012 and in this judgment Hon'ble
Supreme Court did not consider in Ajay Kumar tyagi's
case. The Hon'ble Supreme Court not considered the
Radheshyam Kejriwal's case and Hon'ble Supreme
Court in latest case i.e., Ashoo Surendranath Tewari's
case in the year 2020 not considered Ajay Kumar Tyagi but
considered Rajesh Shyam Kejriwal case. Though the
Hon'ble Supreme Court in recent judgment has held that
the accused can be convicted in Prevention of Corruption
Act, even if circumstantial evidence is proved. I have
verified the judgment, where the Hon'ble Supreme Court
while considering has held that even if the complainant
turned as hostile during the trial or resiled from the earlier
statement, the court can still rely upon the remaining
evidence of remaining witnesses and can convict the
accused, but here in this case, no such demand or
acceptance of any bribe by this petitioner and accused
no.2 said to be demanded from the complainant.
Therefore, the judgment of Hon'ble Supreme Court is not
helpful to the case of the respondent No.2. Therefore, I am
of the view that once the Police Department exonerated
the accused from the department enquiry and accused
No.1 has stated that the amount has been paid to this
petitioner, that itself is not a ground for conducting
proceedings or investigation against the petitioner. That
apart, in spite of exonerating the charges by the same
department, once again the police Home Department
granted sanction. Absolutely, there is no application of
mind for granting sanction to investigate against this
petitioner. The coordinate Bench of this court in ILR 2018
Karnataka 4853 in the case of V.M.Karekar and Anr Vs
The State of Karnataka by Madhugiri Police Station,
Tumakuru and Anr has quashed sanction order and FIR
in a similar case by relying upon the judgment of the order
of the Hon'ble Supreme Court in case of State of Haryana
Vs Bhajanlal.
Therefore considering the above aspect, I am of the
view that conducting investigation against the petitioner/
accused No.1, is abuse of process of law and is liable to be
quashed.
Accordingly, this petition is allowed.
Consequently, FIR filed against petitioner in Crime
No.63/2021 registered by the then Anti-corrupting
Bureau/present Lokayuktha for the offence punishable
under Section 7 (a) of the Prevention of Corruption Act
pending on the file of 23rd Additional City Civil and
Sessions Judge, Bangalore, is hereby quashed.
Sd/-
JUDGE
AKV
